This paper tries to solve this problem from three angles. Firstly, the various situations leading to mental damage are analyzed horizontally to determine the attribute range of mental damage; Then, vertically analyze all levels of personality right damage and determine the structural scope of mental damage; Then, through the analysis of various remedies for the damage of personality right, the form scope of mental damage is determined, so as to solve the problems such as whether mental damage belongs to a part of the damage of personality right, which part it belongs to and how to deal with it, so as to determine the scope of compensation for mental damage. The calculation formula of mental damage compensation is based on this theory.
First, mental damage is a part of personality damage.
There are many reasons why others suffer mental damage, and any form of infringement will cause the victims to suffer mental damage to varying degrees. It is obviously impossible for the law to remedy these damages. Mental damage is different from other damages in essence, and it is closely related to people's feelings, will and emotions. These subjective factors take personality as the carrier of their rights, and when they are damaged, they can get legal relief. Therefore, compensation for mental damage must meet at least two conditions; Infringement is not only aimed at personality, but also at personality.
Can you get compensation for mental damage if your impersonal right is violated? The infringement of impersonal rights mainly includes the infringement of property rights, the infringement of close relatives and the destruction of identity rights. First, the infringement of property rights such as property rights and creditor's rights, such as non-performance of debts and intentional damage to other people's property, sometimes brings great pain to the obligee, but only when this infringement rises to the infringement of personality rights can the law compensate for mental damage, such as peeling someone's pet alive and forcing him to watch it, so as to torture it. The damage to things here is only a means rather than an end. The infringement of property rights can not directly cause mental damage, but only when personality is infringed, it belongs to mental damage in a strict sense; Second, it infringes on children, parents, even friends, and sometimes it causes great pain to itself. However, these sufferings are not directly caused by the behavior that causes harm to people, but indirectly caused, and the law cannot provide relief. Third, the right to identity is inviolable, so there is no legal remedy. Some people may suggest that the right of honor, marriage and family relations and other identity rights can be violated, such as the acquisition of B? Product quality award? If Party A takes this honor as an advertisement, it infringes on Party B's honor right. We think that Party A infringes on the honor granting right of the unit that awarded the honorary title, but not on Party A's honor right, because it is not necessarily only enterprise A that won this honor, and it is not necessarily all enterprise A. If there is infringement, it is only infringement of reputation right? Infringement on a good reputation. For another example, the destruction of marriage and family relations can only be the destruction of personality rights such as freedom of marriage, personal freedom and reputation rights, but not the direct destruction of identity rights.
It can be seen that mental damage can only be a kind of damage to personality interests.
Second, spiritual security is at the highest level of personality right.
However, mental damage is not equal to personality damage, but a part of personality damage. Therefore, to determine the scope of compensation for mental damage, we must clarify the object of mental damage? The position of psychological security in the interest structure of personality.
(A) the hierarchy of personality interests
There are four situations. (1) A will beat B to disability; (2) A writes posters to insult B; (3) Without Party B's consent, Party A used its photos in advertising business and made a profit of 2,000 yuan; (4) A makes anonymous phone calls to intimidate B, which makes B insane. Suppose all four situations cause mental pain to the obligee.
In ①, A causes three layers of damage to B; 1. Physical disability; 2. Violation of the right to health; 3. The mental pain caused by it is not only the medical expenses of the body. ② Among them, the damage caused by A to B includes two layers; 1. Infringe the right of reputation; 2. Mental pain caused by infringement. ③ Among them, all kinds of injuries caused by A to B also include the second floor; 1. Infringement of portrait rights; 2. Mental pain caused by infringement; In addition, there is also the loss of B's portrait right use fee. In ④, the damage caused by A to B is only one layer, that is, the mental pain caused by A to B. ..
Through analysis, we can find that there are levels of infringement on personality, which is determined by the level of personality right. As analyzed above, what is the object of personality right? The interest structure of personality can be divided into three levels; The first layer is the physical benefits. Man is the carrier of personality, and physical interests are the biological basis of personality right. Therefore, these physical interests, such as physical integrity and functional integrity, are at the most basic (lowest) level of personality rights.
The second layer is the core interests. This is the pillar of personality interests. These interests are traditional personality interests, including life, health, portrait, reputation, chastity, name, name and so on. Here, although the rights and interests of life and health are based on the body, they are different from the interests of the body. The interests of the body belong to animals, while life and health have risen to a kind of human interest. We can dispose of the body, right? Healthy? Not at all.
The third layer is psychological safety. The safety of body and personality is the foundation of spirit. The reason why mental safety is regarded as the highest level of personality right is because mental damage, based on the interests of body and spine, is higher than the two kinds of damage. At the same time, this level is relatively independent. For example, in the fourth level, the object of his violation is mental safety, and he can't return to the second level, and he can't incorporate any interests such as life, health, personal freedom, portrait, reputation, chastity, name and name.
It can be seen that personality interests are arranged in the form of an inverted pyramid. The damage of backbone interests is sometimes not caused by the damage of primary interests (bodies), such as examples ②, ③ and ④; At the same time, the destruction of mental security is sometimes not caused by the damage of the second interest, as in Example 4.
(2), the benefits of personality.
In addition, in addition to the personality interest structure, there is also a property interest part closely related to it.
The damage of personality right sometimes leads to the loss of this part of property interests. Such as funeral expenses, medical expenses and lost time expenses from the first floor; The use and transfer fee of portrait right and name right from the second floor; Mental medical expenses start from the third floor.
We believe that mental damage is the destruction of mental safety, manifested as mental pain, so its subject can only be a natural person. Some scholars call it? Spiritual interests? For example, citizens' right to name and portrait, while legal persons' right to name and honor is only the gain of the backbone interests, and the remuneration paid is only the compensation for the loss of the backbone interests. Only the part of compensation that infringes on the citizen's right to name and portrait and causes mental pain to the parties can be recognized as compensation for mental damage.
(C) the structure of mental damage
In addition, in the mental damage layer, it is divided into two parts. There are four situations; (1) B was walking on the railway when a train from a railway bureau broke his thigh; (2) A driving accident broke B's thigh; (3) A fights with B and breaks B's thigh; (4) A interrupts B's thigh and tortures B mentally. ..
Judging from these four cases, B's pain comes from two parts. The first part is objective harm. That is, mental pain caused by thigh fracture; The second part is the harm to subjective views. That is, the pain caused by the subjective malice of A to B, the greater the degree of subjective malice of A, the greater the mental damage suffered by B ... This part is relatively independent. On the one hand, it is based on the first part. Without the objective harm caused by the first part, it is not the harm caused by the second part, because it is impossible to cause damage only by subjective sin without damage. At the same time, the mental damage caused by this part to B is far-reaching. Mental damage is different from any other form of damage in law. It pays the most attention to psychological factors. Therefore, in the mental injury, the deepest pain is the realization of psychological attack. So we have to separate this part.
According to the degree of subjective malice, the second part can be divided into four grades; (1) No fault injury. Its pain only comes from objective injuries, such as ①; (2) negligent injury. Its subjective injury degree is not great (its pain basically comes from objective injury), such as (2); (3) Non-aggressive intentional injury. Although there is subjective intention, it is not the main purpose to cause mental pain to the victim, such as ③; (4) Aggressive intentional injury. Subjectively, direct intention to cause mental damage to others, such as ④.
The first part of the compensation for mental damage is compensatory; The second part is that compensation for mental damage is punitive.
Third, there are special legal remedies for mental damage.
The legal remedy for the damage of personality right is mainly determined according to the hierarchical structure of the damage of personality interests. In the case of (1), the legal remedies are: The first level of infringement is mainly in the form of civil compensation, including medical expenses and lost time; Infringement of the second-level health right mainly takes criminal and administrative sanctions; The third level of infringement belongs to the scope of spiritual compensation. In case 2, there is no infringement at the first level, and the legal remedies for infringement at other levels include; Criminal, administrative and non-compensatory civil sanctions (such as eliminating influence, apologizing, etc.). ) is mainly aimed at infringing the second-class reputation right; The third layer of infringement belongs to the scope of spiritual compensation.
After excluding other forms of personality damage relief, the status of mental damage compensation appears. It can also be seen that mental damage is different from general civil compensation. Mental damage compensation includes medical expenses from the third level of personality and the use fee of some personality rights. What does mental damage compensation mean? Pain fee? .